Davis v. State

• Decision Date: 05 September 1979
• Docket Number: No. 58126,58126
• Citation: Davis v. State, 259 S.E.2d 207, 151 Ga.App. 222 (Ga. App. 1979)
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

Page 207

259 S.E.2d 207

151 Ga.App. 222

DAVIS v. The STATE.

No. 58126.

Court of Appeals of Georgia.

Argued July 2, 1979.

Decided Sept. 5, 1979.

J. Douglas Willix, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Benjamin H. Oehlert, III, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Davis was convicted of criminal attempt to commit armed robbery, carrying a pistol without a license, and carrying a concealed weapon. After denial of his motion for new trial, Davis appeals and enumerates here as in his motion for new trial only the general grounds.

The state's evidence showed that Davis, along with co-defendant Love, entered the victim's place of business appearing to be prospective customers. When Love sought to purchase a soft drink, the victim took Love's money and, as he proceeded to the cash register to make change, both defendants approached him. Hearing one of the defendants state, "This is it," the victim looked up to see a gun in the hands of Davis. Reacting with indignation rather than fear, the victim successfully took the weapon from Davis and fired at Davis and Love, at which time both defendants attempted to exit the victim's premises and were apprehended in an alley adjacent to the victim's place of business.

Although Davis did not testify, he relied upon evidence offered by Love depicting a scenario wherein the victim was engaged in illegal gambling with the defendants entering the victim's establishment solely for the purpose of collecting a winning lottery ticket. On this basis, defendants sought to convince the jury that the victim was the aggressor. However, the guilty verdict indicates that the jury was unpersuaded; and this verdict must be upheld if there was evidence supporting the state's version of the occurrence. Harris v. State, 149 Ga.App. 374, 254 S.E.2d 518 (1979); Walker v. State, 146 Ga.App. 555, 246 S.E.2d 737 (1978); Bethay v. State, 235 Ga. 371...